Madras High Court
S.Balaguru vs G.Kannan on 11 April, 2023
Crl.R.C(MD)No.524 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.04.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.524 of 2018
S.Balaguru ... Petitioner/
Appellant/Complainant
Vs.
G.Kannan ... Respondent/
Respondent/Accused
PRAYER: Criminal Revision Case filed under Sections 397 r/w 401
of the Code of Criminal Procedure, to call for the records and set
aside the Judgment passed in Criminal Appeal No.90 of 2017 on the
file of the learned Additional Sessions Judge / Fast Track Mahila
Court, Karur, dated 12.10.2017, confirming the conviction and
sentence passed in C.C.No.116 of 2013 on the file of the learned
Judicial Magistrate, Fast Track Court at Magisterial Level, Karur,
dated 16.02.2015 by allowing the Criminal Revision Petition.
For Petitioner : Mr.S.Kadarkarai
For Respondent : Mr.S.I.Muthiah
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Crl.R.C(MD)No.524 of 2018
ORDER
This revision has been filed to set aside the order passed
in Criminal Appeal No.90 of 2017 on the file of the learned
Additional Sessions Judge / Fast Track Mahila Court, Karur, dated
12.10.2017, confirming the conviction and sentence passed in
C.C.No.116 of 2013 on the file of the learned Judicial Magistrate,
Fast Track Court at Magisterial Level, Karur, dated 16.02.2015.
2.The petitioner is the complainant and the respondent
is an accused in the complaint lodged by the petitioner for the
offence punishable under Section 138 of the Negotiable Instruments
Act.
3.The crux of the complaint is that the respondent
borrowed a sum of Rs.7,00,000/- on 22.12.2012 as a hand loan and
on the same day, he also issued a cheque for the said sum and
promised to repay the said loan amount on or before 31.12.2012.
The said cheque was presented for collection and the same was
returned dishonoured for the reason 'funds insufficient'. After
causing statutory notice, the petitioner lodged the complaint.
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Crl.R.C(MD)No.524 of 2018
4.On the side of the petitioner, he himself was examined
as P.W.1 and also marked Exs.P.1 to P.6 and on the side of the
respondent, he himself was examined as D.W.1 and Ex.D.1 to Ex.D.
8 were marked.
5.On perusal of the oral and documentary evidence, the
trial Court found the accused not guilty for the offence punishable
under Section 138 of the Negotiable Instruments Act and acquitted
the respondent. Aggrieved by the same, the petitioner preferred an
appeal in Criminal Appeal No.90 of 2017 on the file of the learned
Additional Sessions Judge / Fast Track Mahila Court, Karur and the
Appellate Court also dismissed the same confirming the order of the
trial Court. Hence, the present revision.
6.The learned counsel appearing for the petitioner would
submit that the petitioner discharged his initial burden to draw the
presumption under Section 139 of the Negotiable Instruments Act.
Even then, both the Courts below dismissed the complaint for the
reason that there was no legally enforceable debt or liability. That
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Crl.R.C(MD)No.524 of 2018
apart, the Courts below concluded that there was several litigation
pending between the respondent and his relatives and to draw the
presumption, the complaint itself is not genuine. There is no legal
bar to receiving the cheque which is issued for legally enforceable
debt. Therefore, he prayed for convicting the respondent for the
offence under Section 138 of the Negotiable Instruments Act.
7.Heard the learned counsel appearing for the petitioner
and the learned counsel appearing for the respondent and perused
the materials available on record.
8.Admittedly, several litigations are pending between the
family members of the respondent from the year 2011, particularly
between the respondent and his sister. The case of the appellant is
that the respondent's sister's husband recommended for lending
loan. Therefore, there is a strained relationship between the family
members. Therefore, it is not possible that on the recommendation
of the respondent's sister's husband, the appellant had advanced
loan. That apart, except the cheque, no other document was
executed by the petitioner while lending such a huge amount of Rs.
7,00,000/-. In respect of the source of income, the appellant
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Crl.R.C(MD)No.524 of 2018
admitted that he borrowed loan from the financier and purchased
vehicles. That apart, on the date of borrowal itself, the respondent
issued the alleged cheque for the said sum. It is unbelievable that
no prudent man would issue cheque for repayment of the loan
borrowed on the same date, namely, the date of borrowal in order
to discharge the said liability. In order to rebut the presumption, the
respondent had examined D.W.1 and marked Ex.D.1 to Ex.D.8. All
those documents proved that there is a strained relationship
between his family members and categorically rebutted the
presumption. Therefore, the entire burden shifted on the side of the
petitioner and even then, the petitioner failed to prove his case in
the manner known to law. Therefore, both the Courts below rightly
acquitted the respondent for the offence punishable under Section
138 of the Negotiable Instruments Act and this Court finds no
infirmity or illegality in the order passed by the Courts below.
Accordingly, this Criminal Revision Case is dismissed.
11.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.524 of 2018
To
1.The Additional Sessions Judge /
Fast Track Mahila Court,
Karur.
2.The Judicial Magistrate,
Fast Track Court at Magisterial Level,
Karur.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.524 of 2018
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.524 of 2018
11.04.2023
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